Recent Court Decision Highlights Danger of Client’s Use of AI in Connection with Pending Litigation

Article by: Wallace Lightsey, Josh Lonon, Matthew Richardson, and Austin Coward

A highly respected federal judge in New York just issued a decision that a criminal defendant’s written exchanges concerning his case with Anthropic’s AI platform “Claude” were not protected by the attorney-client privilege and therefore could be obtained by the government to use against the defendant. The judge noted that the ruling appeared to be the first known decision regarding the interplay of AI and privilege.

Here’s what happened: The defendant (not a lawyer) used Claude to prepare written analyses about his case. Later, he claimed those communications were privileged because he had input confidential information that he learned from counsel and because he had Claude prepare the materials for him to use in seeking advice from his attorney. The court said no. Why? Claude isn’t a lawyer. There’s no attorney-client relationship. And the platform’s privacy terms allowed collection and potential disclosure of inputs and outputs, which prevented there being any reasonable expectation of confidentiality.

The context of this decision was a criminal prosecution, but there is no reason it would not also apply in civil litigation or a regulatory proceeding. Therefore, if you input confidential information, deal strategy, or litigation analysis into a public AI platform, you may be creating discoverable material that the other side can force into the open during litigation, investigations, or administrative actions. The other side may be able to see not just sensitive confidential information, but also your legal strategy and advice from your counsel, if it was shared with the AI platform.

“Preparing to talk to my lawyer” via AI does not create privilege, and forwarding the output to counsel later does not fix it. In a chilling passage in a footnote, the court noted that “if certain information that [the defendant] input into Claude was privileged, he waived the privilege by sharing that information with Claude and Anthropic, just as if he had shared it with any other third party.”

None of this means don’t use AI. It means use it intelligently. Do not input private information, confidential attorney advice or legal analysis, or other client information relating to a pending legal matter into AI without first checking with your counsel.

Similar risks apply to social media use during active legal proceedings. You should always be extremely careful about posting information relating to a pending legal matter on social media. There are horror stories of plaintiffs in personal injury cases, who were claiming catastrophic injuries in a lawsuit, having posted videos of themselves water-skiing just weeks before they were deposed or their case went to trial. Even in complex business cases, information posted on social media can be used by the other side to attack your case. It’s better not to post anything about a pending legal matter.

The New York decision discussed here is United States v. Heppner, Case No. 25 Cr. 503 (JSR) (S.D.N.Y. Feb. 17, 2026).

Wyche Austin Coward (web Quality) 22

Austin Coward

Austin Coward focuses his practice on complex litigation, representing plaintiffs and defendants in tort claims and other civil matters. Prior to joining Wyche, he worked as a law clerk for the Honorable Justice John Cannon Few of the South Carolina Supreme Court. He graduated magna cum laude from the University of South Carolina School of Law and graduated magna cum laude from the University of North Carolina Wilmington.

Wallace Lightsey

Wallace K. Lightsey

Wallace is an experienced trial and appellate attorney, with over 60 jury trials in state and federal courts throughout the Southeast, and approximately 100 bench trials, jury trials, and arbitration trials, as well as numerous appeals in the South Carolina appellate courts and the United States Courts of Appeals for the First, Fourth, Sixth, and Eleventh Circuits. His practice involves complex securities, corporate, and intellectual property cases, as well as news media and First Amendment disputes. In the area of First Amendment litigation, he has represented Facebook Inc., Time Inc., NBC, The New York Times Company, Forbes, The Associated Press, and Pulitzer Broadcasting, as well as many local and state newspapers and broadcasters.  He also has deep experience litigating disputes over intellectual property — such as trademark, copyright, and trade secrets — and in recent years has been lead counsel in copyright lawsuits involving close to a billion dollars at issue.

In 2004, he was inducted into the American College of Trial Lawyers, an organization composed of a small percentage of the best trial attorneys in the U.S. and Canada. And in 2019, he was inducted into the American Academy of Appellate Lawyers, the most prestigious group of appellate practitioners in the country.

Wallace is actively involved in matters of professional ethics, and served as the Chair of the South Carolina Commission on Lawyer Conduct from 1997 through 2004.

Building on his substantial trial and courtroom experience, Wallace has been certified by the American Arbitration Association to its Roster of Neutrals for commercial arbitration, and has served as panel chair, panel member, and sole arbitrator in a number of arbitrations involving large, complex disputes as well as relatively simple ones.  Unlike many judges, Wallace likes helping to resolve discovery disputes and is available for appointment as a special discovery master in lawsuits where the parties anticipate having to deal with difficult discovery matters.

Josh Lonon

Josh Lonon

Josh Lonon regularly serves as lead counsel for national and regional companies, both public and private, local and statewide developers, and higher education institutions and other non-profits, in the acquisition, development, financing, sale, and leasing of commercial properties. Such properties are often industrial and manufacturing facilities and complexes and large multi-family, office, retail, and mixed used developments.

Josh also advises clients on, and regularly negotiates with and appears before municipal bodies to obtain, economic development tax incentives. These include fee-in-lieu of taxes arrangements, infrastructure tax credits, multi-county industrial and business park inclusions, tax abatements and rehabilitation tax credits for renovation of abandoned textile and historic properties. He also has experience with title insurance companies both as outside and inside counsel, giving him keen insight into solving complex title and title insurance issues.

Josh has served as Chair of the South Carolina Bar Real Estate Practices Section and as editor of the 2d edition of the South Carolina Commercial Real Estate Handbook. He is a former executive board member of the Upstate, South Carolina chapter of the Urban Land Institute and has chaired and held other leadership positions on several local government boards non-profits. He is a graduate of the South Carolina Bar Leadership Academy, Leadership Spartanburg, is a Regional Fellow of the Spartanburg Regional Healthcare System and has been included in the Pro Bono Honor Roll by the South Carolina Supreme Court for multiple years.

Josh is recognized by Chambers USA, Super Lawyers, Best Lawyers, SC Biz Magazine’s Real Estate Power List and Greenville Business Magazine’s Legal Elite of the Upstate, and is a recipient of the South Carolina Lawyers Weekly Leadership in Law Award.

Matthew Richardson

Matthew T. Richardson

Matthew’s practice focuses mostly on complex civil litigation, and he has participated in some of the largest and most complicated litigation in South Carolina in the past 20 years, including the largest minority owner oppression litigation, the largest public utility rate case, the largest public corruption investigation and prosecution in a generation, the statewide redistricting challenges, statewide consumer protection litigation, and a federal constitutional challenge to temporary rate relief after construction was abandoned on the new nuclear power plant.  Matthew represents a class of all foster care children in South Carolina for systemic reforms and is lead counsel in the state constitutional challenge to the South Carolina Heritage Act. He also handles personal injury, business litigation, and government and election law matters. His experience includes jury trials, bench trials, agency hearings and contested cases, preliminary motions and injunctions, dispositive motions and permanent injunctions, class action certification determinations, mediations, arbitrations, and appeals. Matthew is based in our Columbia, SC office.

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